[Introduced February 13, 2013; referred to the Committee on the
Judiciary.]

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A BILL to amend and reenact §16-5C-15 of the Code of West Virginia,
1931, as amended, relating to clarifying that actions brought
for damages for injuries suffered in a nursing home are
subject to the same liability limitations as other medical
professional liability actions.Be it enacted by the Legislature of West Virginia:
That §16-5C-15 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:ARTICLE 5C. NURSING HOMES.§16-5C-15. Unlawful acts; penalties; injunctions; private right
of action.
(a) Whoever advertises, announces, establishes or maintains,
or is engaged in establishing or maintaining a nursing home without
a license granted under section six of this article, or who prevents, interferes with or impedes in any way the lawful
enforcement of this article shall beis guilty of a misdemeanor
and, upon conviction thereof, shall be punished for the first
offense by a fine of not more than $100, or by imprisonment
confinement in the county or regional jail for a period of not more
than ninety days, or by both such fine and imprisonment
confinement, at the discretion of the court. For each subsequent
offense, the fine may be increased to not more than
$250, with
imprisonmentconfinement in the county or regional jail for a
period of not more than ninety days, or by both such fine and
imprisonmentconfinement, at the discretion of the court. Each day
of a continuing violation after conviction shall beis considered
a separate offense.
(b) The director may in his or her discretion bring an action
to enforce compliance with this article or any rule or order
hereunder whenever it shall appearappears to the director that any
person has engaged in, or is engaging in, an act or practice in
violation of this article or any rule or order hereunder, or
whenever it shall appearappears to the director that any person
has aided, abetted or caused, or is aiding, abetting or causing
such an act or practice. Upon application by the director, the
circuit court of the county in which the conduct has occurred or is
occurring, or if emergency circumstances occur, the circuit court
of Kanawha County, shall havehas jurisdiction to grant without bond a permanent or temporary injunction, decree or restraining
order.
Whenever the director shall havehas refused to grant or renew
a license, or shall havehas revoked a license required by law to
operate or conduct a nursing home, or shall havehas ordered a
person to refrain from conduct violating the rules of the director,
and the person deeming himself or herself aggrieved by such refusal
or revocation or order shall havehas appealed the action of the
director, the court may, during pendency of suchthe appeal, issue
a restraining order or injunction upon proof that the operation of
the nursing home or its failure to comply with the order of the
director adversely affects the well-being or safety of the
residents of the nursing home. Should a person who is refused a
license or the renewal of a license to operate or conduct a nursing
home or whose license to operate is revoked or who has been ordered
to refrain from conduct or activity which violates the rules of the
director, fail to appeal or should suchthe appeal be decided
favorably to the director, then the court shall issue a permanent
injunction upon proof that the person is operating or conducting a
nursing home without a license as required by law, or has continued
to violate the rules of the director.
(c) Any nursing home that deprives a resident of any right or
benefit created or established for the well-being of this resident
by the terms of any contract, by any state statute or rule, or by any applicable federal statute or regulation, shall beis liable to
the resident for injuries suffered as a result of suchthe
deprivation. Upon a finding that a resident has been deprived of
such a right or benefit, and that the resident has been injured as
a result of such deprivation, and unless there is a finding that
the nursing home exercised all care reasonably necessary to prevent
and limit the deprivation and injury to the resident, compensatory
damages shall be assessed in an amount sufficient to compensate the
resident for such injury.An action brought under this subsection
is subject to the limitations and provisions of article seven-b,
chapter fifty-five of this code. In addition, where the
deprivation of any suchthe right or benefit is found to have been
willful or in reckless disregard of the lawful rights of the
resident, punitive damages may be assessed. A resident may also
maintain an action pursuant to this section for any other type of
relief, including injunctive and declaratory relief, permitted by
law. Exhaustion of any available administrative remedies mayis
not be required prior to commencement of a suit hereunderunder
this subsection.
The amount of damages recovered by a resident, in an action
brought pursuant to this section, shall beis exempt for purposes
of determining initial or continuing eligibility for medical
assistance under article four, chapter nine of this code, and may
neither be taken into consideration nor required to be applied toward the payment or part payment of the cost of medical care or
services available under saidthat article.
Any waiver by a resident or his or her legal representative of
the right to commence an action under this section, whether oral or
in writing, shall be null andis void as contrary to public policy.
(d) The penalties and remedies provided in this section are
cumulative and shall beare in addition to all other penalties and
remedies provided by law.

NOTE: The purpose of this bill is to provide technical clean-
up to clarify that the Legislature originally intended that all
actions brought against a nursing home are subject to all the
limitations and provisions set forth in the Medical Professional
Liability Act.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.